Citation Nr: 0031199
Decision Date: 11/30/00 Archive Date: 12/06/00
DOCKET NO. 99-02 710 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased rating for a kyphotic
deformity of the thoracolumbar juncture with osteophyte
formation at the T-11 level, currently evaluated as 10
percent disabling.
2. Entitlement to an increased rating for residuals of a
fracture of the right wrist navicular bone, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from January 1978 to July
1990. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from an October 1998 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio, which increased the
evaluations for kyphotic deformity of the thoracolumbar
junction and residuals of a fracture of the right wrist
navicular bone from noncompensably disabling to 10 percent
each, effective June 1, 1998.
It is noted that, although having requested a hearing before
the Board, the veteran failed to appear for the hearing
scheduled for July 17, 2000. In correspondence of record,
the veteran's representative acknowledged that the veteran
would be unable to attend and requested that a hearing not be
rescheduled. In light of the foregoing, therefore, the
request for hearing is deemed withdrawn, and the appeal is
being processed accordingly. 38 C.F.R. § 20.704 (d) (2000).
FINDINGS OF FACT
1. The kyphotic deformity of the thoracolumbar juncture with
osteophyte formation at the T-11 level disability is
manifested by subjective complaints of pain and by clinical
observations of minimal osteoarthritis.
2. The lumbar spine disability is manifested by subjective
complaints of pain and by slight tenderness at L-1 and, with
the exception of complete rotation testing, slight limitation
at extremes of ranges of motion.
3. The residuals of a fracture of the right wrist navicular
bone are manifested by subjective complaints of pain, X-ray
evidence of degenerative changes, and limitation of motion.
CONCLUSIONS OF LAW
1. An evaluation in excess of 10 percent for kyphotic
deformity of the thoracolumbar juncture with osteophyte
formation at the T-11 level is not warranted. 38 U.S.C.A. §§
1155, 7104 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7,
4.10, 4.40, 4.45, 4.59, Diagnostic Codes 5003, 5291 (2000).
2. A separate 10 percent evaluation, but no greater, is
warranted for a lumbosacral strain. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59
and Part 4, Diagnostic Code 5295 (2000); Esteban v. Brown, 6
Vet. App. 259 (1994).
3. The criteria for a rating in excess of 10 percent for
residuals of a fracture of the right wrist navicular bone
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 4.7, 4.40, 4.45 and Part 4, Diagnostic Code 5215
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Disability ratings are determined by the VA's Schedule for
Rating Disabilities as set forth at 38 C.F.R. Part 4. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity in
civil occupations and the disability must be viewed in
relation to its history. 38 C.F.R. § 4.1. Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7. While lost time from work related to a
disability may enter into the evaluation, the rating schedule
is "considered adequate to compensate for considerable loss
of working time from exacerbations or illnesses proportionate
to the severity" of the disability. 38 C.F.R. § 4.1.
Functional loss of use as the result of a disability of the
musculoskeletal system may be due to the absence of bones,
muscles, or joints, or may be due to pain, supported by
adequate pathology and evidenced by the visible behavior of
the claimant undertaking the motion. 38 C.F.R. § 4.40. Both
limitation of motion and pain are necessarily regarded as
constituents of a disability. 38 C.F.R. §§ 4.40, 4.45, 4.55,
4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The
present level of disability is of primary concern where
service connection has been established and an increase in
the disability rating is at issue. Francisco v. Brown, 7
Vet. App. 55, 58 (1996).
In adjudicating the claim, the Board determines whether (1)
the weight of the evidence supports the claim, or (2) the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim: the appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and
Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran's claims.
The Board has found nothing in the historical record which
would lead it to conclude that the current evidence of record
is not adequate for rating purposes. Moreover, the Board is
of the opinion that this case presents no evidentiary
considerations which would warrant an exposition of the
remote clinical histories and findings pertaining to the
veteran's disability at issue except as set forth below.
Kyphotic Deformity of the Thoracolumbar Juncture
An in service hospital summary noted the veteran presented
with paravertebral thoracolumbar junction discomfort, which
developed insidiously without antecedent trauma or obvious
precipitant. On examination, there was no palpable
deformity. There was a kyphotic deformity of the
thoracolumbar junction with a right paravertebral hump in
stance. Plain radiographs of the thoracolumbar spine showed
a T-11 to L-1 kyphotic deformity with an anterior osteophyte
on the body of T-11. The veteran was separated on account of
the disability. Service connection was established
(noncompensable) in an unappealed rating of April 1991.
The veteran was afforded a VA examination in August 1998 in
the context of the current increased rating claim. The
veteran usually awoke pain free. After about three hours the
pain in his spine became progressively worse. The condition
worsened with just sitting and moving around (stretching)
alleviated the discomfort. He rated his pain in the spine as
a seven on a 1-10 scale. Objectively, he was tender to
palpation at T-4 to T12 and mild tenderness at L-1. There
was no paravertebral tenderness or spasm demonstrated. No
limitation of motion of the thoracic spine was demonstrated.
The veteran demonstrated some limitation of motion of the
cervical spine. The veteran was capable of demonstrating
forward flexion of the lumbar spine to 80 degrees before
developing pain. The veteran reported pain in the entire
spine on backward extension. The veteran had some pain with
lateral flexion to the left at 30 degrees and to the right at
22 degrees. Rotation was complete. There was no
neurological deficit demonstrated. Deep tendon reflexes were
equal bilaterally +2 in the upper and lower extremities.
Straight leg raising was negative. X-rays showed minimal
osteoarthritis of the 10th and 11th thoracic vertebra. A
pertinent diagnosis was minimal osteoarthritis of the
thoracic spine.
The Board observes, however, that when service connection was
originally established in April 1991 for the disability at
issue, evaluation was established pursuant to Diagnostic Code
5295, lumbosacral strain. A noncompensable evaluation was
assigned at that time. More recently, the RO assigned a 10
percent evaluation pursuant to Diagnostic Code 5291, dorsal
spine. The RO, in a June 1999 supplemental statement of the
case, concluded that it was inappropriate to consider the
service connected disability pursuant to diagnostic criteria
for the lumbosacral spine because that portion of the
disability "dealing with the lumbar spine did not seem to
have increased in severity." Resolving all doubt in favor
of the veteran and for the reasons set forth more fully
below, the Board is of the opinion that a separate 10 percent
disability evaluation for the veteran's lumbar spine is for
application.
In Esteban v. Brown, 6 Vet. App. 259 (1994), it was
determined that except as otherwise provided in the rating
schedule, all disabilities, including those arising from a
single disease or entity, are to be rated separately, and
then all ratings are to be combined pursuant to 38 C.F.R. §
4.25. Id. at 261. The exception which prohibits pyramiding
at 38 C.F.R. § 4.14 was noted. Evaluation of the "same
disability" or the "same manifestation" under various
diagnoses is to be avoided. Id. In balancing these two
provisions of the Rating Schedule, the critical element for
allowing separate evaluations would be that none of the
symptomatology from a single disability would be duplicative
or overlapping. Id.
With respect to the arthritis established by X-ray findings,
such disability will be rated on the basis of limitation of
motion under the appropriate diagnostic codes for the
specific joint or joints involved. When, however, the
limitation of motion is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent is to be assigned
for each such major joint or group of minor joints affected
by limitation of motion, to be combined, not added, under
code 5003. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. 38 C.F.R. Part
4.71, Diagnostic Code 5003.
Under the provisions of Diagnostic Code 5295 (lumbosacral
strain), a 40 percent evaluation is warranted where the
disorder is severe, with listing of the whole spine to the
opposite side, positive Goldthwait's sign, marked limitation
of forward flexion, loss of lateral motion, arthritic changes
or narrowing or irregularity of intervertebral spaces, or
some of the above with abnormal mobility on forced motion; a
20 percent evaluation is warranted for muscle spasm on
extreme forward flexion and loss of lateral spine motion on
one side; a 10 percent evaluation is warranted for
characteristic pain on motion; a noncompensable evaluation is
warranted where there are only slight subjective symptoms.
38 C.F.R. § 4.71a, Code 5295.
The benefit of the doubt rule is a unique standard which is
applicable to claims before the VA. In essence, the rule
provides that, where there is an approximate balance of
positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving the issue shall be given
to the claimant. 38 U.S.C.A. § 5107(b). In determining
whether the statutory right to the benefit of the doubt
applies, a determination as to the balance of all the
evidence must be made. The benefit of the doubt rule only
applies if it is found that the evidence is in equipoise.
Gilbert v. Derwinski, 1 Vet. App. 61 (1991). The Board finds
that there is an approximate balance of positive and negative
evidence. Under the circumstances, the benefit of the doubt
has been resolved in the veteran's favor. 38 U.S.C.A. §
5107.
Clinical findings as to the lumbar spine reflect mild
tenderness at L-1 and some slight limitation of motion
occasioned by pain on extremes of range of motion. The 1991
rating noted the absence of lumbar pathology at that time.
Accordingly, there has been some increase in severity since
that time. Therefore, the Board is of the opinion that the
disability approaches manifestation of characteristic pain on
motion. There was no muscle spasm or evidence of any greater
disability demonstrated`. Accordingly, a minimally
compensable evaluation, but no higher, is supported pursuant
to Diagnostic Code 5295 for the veteran's lumbar spine.
The Board notes that Diagnostic Code 5285 allows for an
additional 10 percent disability rating for demonstrable
deformity of a vertebral body deriving from residuals of a
fracture of a vertebra. Such a condition will be rated in
accordance with definite limited motion or muscle spasm,
adding 10 percent for demonstrable deformity of a vertebral
body. 38 C.F.R. § 4.71a, Diagnostic Code 5285. However, the
criteria are inapplicable in this case inasmuch as the
disability has not shown to derive from vertebral fracture;
alternatively, a demonstrable deformity of a vertebral body
per se has not been identified.
The veteran has contended that his service-connected spine
condition should be evaluated in accordance with Diagnostic
Code 5290, which provides evaluation criteria for limitation
of motion of the cervical spine. However, the RO considered
establishing entitlement to service connection for a cervical
spine disability; but the claim of entitlement to service
connection for a cervical condition was denied by an
unappealed rating decision of March 1999. Inasmuch as
entitlement to service-connected has not been established for
a cervical spine disorder, evaluation of the veteran's
service-connected disability pursuant to criteria for the
cervical spine would not be appropriate.
Evaluation of the veteran's condition under other Diagnostic
Codes would not be more beneficial to the veteran in the
absence of such symptomatology demonstrating pertinent
pathology or a more debilitating condition thereunder.
Right Wrist Fracture
The veteran sustained a right wrist fracture in service. A
1991 X-ray showed non-united fracture of the navicular with
moderate degenerative changes. He was afforded a VA
examination in August 1998, at which time he reported
increased limitation of motion of the wrist since the
disability was last evaluated. On current examination, his
wrist was without obvious deformity on inspection. He was
right hand dominant. There was no tenderness to palpation.
He had what was reported by the examiner as a significant
decrease in range of motion. On the right, he could press
120 pounds, but that elicited loud popping noises. He could
press 140 pounds on the left. He was capable of radial
deviation to 9 degrees only and ulnar deviation to 5 degrees.
Flexion was to 60 degrees with extension to 35 degrees. He
had full range of motion on the left.
Limitation of dorsiflexion of either wrist to less than 15
degrees or limitation of palmar flexion of either wrist to in
line with the forearm warrants at most a 10 percent
evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5215. Since
the veteran currently receives the maximum 10 percent rating,
an increased rating under this provision is not possible.
As the file contains no evidence of ankylosis (favorable or
unfavorable), a higher rating is not possible under
Diagnostic Code 5214. Ankylosis is defined as immobility and
consolidation of a joint due to disease, injury or surgical
procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). A
review of clinical findings indicates that the veteran could
perform range of motion testing of the disabled joint. As
such clearly establishes that ankylosis is not present, the
criteria pertaining to ankylosis are inapplicable and cannot
serve as the basis for an increased rating.
As noted above, evaluation of the disability at issue in
accordance with the range of motion of motion for the
affected joint also contemplates and embraces the arthritic
aspect of the disability. Accordingly, the preponderance of
the evidence is against an increased evaluation.
Conclusion
A 10 percent evaluation is the maximum rating assignable for
limitation of motion of the dorsal (thoracic) spine and
encompasses moderate as well as severe limitation of motion.
38 C.F.R. Part 4, DC 5291. Likewise, a 10 percent evaluation
is the maximum rating assignable for limitation of motion of
the wrist and encompasses moderate as well as severe
limitation of motion. 38 C.F.R. Part 4, Diagnostic Code
5215. Under those diagnostic criteria, therefore, there is
no basis for an increased rating. The Board notes that there
is no basis for a rating in excess of 10 percent based on
limitation of motion due to any functional loss as the
veteran is receiving the maximum schedular rating for
limitation of motion of the dorsal spine or the wrist. See
Johnston v. Brown, 10 Vet. App. 80 (1997).
The potential application of various provisions of Title 38
of the Code of Federal Regulations has also been considered,
but the record does not present such "an exceptional or
unusual disability picture as to render impractical the
application of the regular rating schedule standards."
38 C.F.R. § 3.321(b)(1). In this regard, the Board finds
that there has been no showing by the veteran that the
service connected disorders at issue have resulted in marked
interference with employment or necessitated frequent periods
of hospitalization so as to render impractical the
application of the regular rating schedule standards. In the
absence of such factors, the Board finds that criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
Finally, with regard to the foregoing decision, the Board has
considered the provisions of 38 U.S.C.A. § 5107(b), but,
except as allowed above, there is not such a state of
equipoise of the positive evidence and the negative evidence
to otherwise permit a more favorable resolution of the
present appeal.
ORDER
Entitlement to an increased rating for a kyphotic deformity
of the thoracolumbar juncture with osteophyte formation at
the T-11 level is denied.
Entitlement to a 10 percent disability evaluation for a
lumbosacral strain is granted, subject to the provisions
governing the award of monetary benefits.
Entitlement to an increased rating for residuals of a
fracture of the right wrist navicular bone is denied.
ROBERT E. O'BRIEN
Acting Veterans Law Judge
Board of Veterans' Appeals
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